“A fate worse than death….” We’ve all heard this saying before, and when it comes to planning for your future and the future well being of your loved ones, the saying often holds true.
When most people think of preparing their estate plans, they think of preparing wills to distribute their assets to their children and other loved ones when they pass away. But as we all know, life does not always end under the most convenient and economical circumstances. Becoming disabled and incapacitated can not only be excruciatingly burdensome on the incapacitated/disabled person’s family and resources, but it can become a major estate planning issue.
If you were to become disabled or incapacitated such that you could no longer make decisions for yourself:
1) Who would manage your financial affairs (e.g. paying taxes, paying the mortgage, paying for medical care, etc..)?
2) Who would see to it that you received the medical attention you needed and desired?
3) Who would preserve your estate, including your personal property assets from creditors and claims?
4) And who would ensure that all of your other personal affairs are kept in order?
All of these questions arise in the context of what one might call “lifetime estate planning,” And without some forethought about the answers to these questions, the ramifications of an unexpected disability or incapacity can undermine even the most healthy of estate plans.
To address the above questions, there are a few documents that should comprise the core of any estate plan. These documents include: 1) a Durable Power of Attorney for Personal Property and Affairs; 2) a Health Care Directive (sometimes referred to as a “Living Will”); 3) Power of Attorney for Health Care Decisions, and 4) a Medical Information Authorization and Release. The following is brief explanation of each:
1. General Durable Power of Attorney for Personal Property and Personal Affairs. This document allows your “attorney-in-fact” to manage and administer your personal property and your personal affairs should you find yourself in an incapacitated state. The document can be written very broadly in order to give your agent the most flexibility, but it only comes into effect upon you incapacity. Although circumstances might dictate otherwise, a “springing” power of attorney is usually recommended as it becomes effective only upon your incapacity. The fact that the power of attorney is “durable,” means that it survives incapacity. Any power of attorney that you create while you have full capacity will become null and void if not properly drafted by a legal professional.
2. Health Care Directive. Otherwise known as a “living will,” this document proscribes the care you receive, and any life-saving measures that might be taken on your behalf, should you find yourself in permanent unconscious or unconscious, terminal condition. We have all heard in the news about the family disputes and expensive courtroom fights that can arise when others are left to decide the fate of their loved ones who find themselves in one of the above conditions. The purpose of this document is to avoid such conflicts of interest.
3. Power of Attorney for Health Care Decisions. While a Durable Power of Attorney for Personal Property and Personal Affairs, the Power of Attorney for Health Care Decisions allows your appointed agent to make health care decisions on your behalf, decisions that would fall short of the extreme choices you have made in advance as part of your Health Care Directive discussed above.
4. Health Care Information Authorization and Release. This HIPPA-compliant document allows your health care agent to access your medical records and information, and to discuss your medical condition with your physicians, even in non-emergent, non-incapacitated conditions. Ironically enough, your health care directive and Health Care Power of Attorney will allow your health care agent to make medical decisions on your behalf, but those documents alone do not allow your agent to access the medical information necessary to make those decisions. This authorization and release fills that gap.
While estate planning for your life (as opposed to your death) involves many more decisions and issues than what has been covered here, the above documents are a great start and should be at the core of any estate plan. Because the matters covered by the above documents are largely controlled by state law, you should consult an estate planning attorney within the state where you live if you are interested in preparing your lifetime estate planning documents.